Woman convicted in child’s death says Burge was ineffective as defense

ELYRIA — Attorneys for convicted killer Melissa Dovala argued Friday that Lorain County Common Pleas Judge James Burge failed to put on an effective defense while Burge served as a defense attorney during Dovala’s 2005 trial.

Dovala, who maintains her innocence, is serving 15 years to life in prison for murder, felonious assault and endangering children after a jury found her guilty of killing 5-month-old Riley Smath on Feb. 6, 2004.

During the trial, prosecutors argued that Riley suffered a blow to the head after his mother, Eileen Callahan-Smath, dropped the boy off at Dovala’s Amherst home. Dovala was the boy’s baby sitter and claimed during the trial she didn’t know how Riley was injured.

During the trial, Burge argued that slow skull growth had forced the boy’s still-growing brain against his skull, resulting in the injuries that eventually led to his death.

Mark DeVan, a Cleveland criminal defense attorney who testified as an expert during Friday’s hearing, said Burge failed to hire proper medical experts to review the medical evidence and failed to explore alternate theories that someone else, including other children Dovala was baby sitting, may have caused the injury that killed Riley.

“He did not present or develop a theory of reasonable doubt,” DeVan told Visiting Judge Judith Cross, who will decide whether to grant Dovala’s request for a new trial.

Cross already has rejected the request once, saying that she didn’t believe that Dovala could challenge her attorney’s work on the case in her motion for a new trial. The 9th District Court of Appeals overturned Cross and ordered her to consider the ineffective assistance of counsel during a review of the request for a new trial.

Andrus Pliplys, a Chicago pediatric neurologist, testified Friday that he didn’t believe the theories presented by Burge or county Coroner Paul Matus during Dovala’s trial accurately described how Riley was injured.

He said the skull fracture on Riley’s head, which caused bleeding on the brain, came from a quick burst of pressure on the boy’s skull. It’s an injury, he said, that could have been caused by a child as young as 4 years old.

Assistant Cuyahoga County Prosecutor Brent Krirvel — the Lorain County Prosecutor’s Office removed itself from the case in 2004 because a member of Dovala’s family worked there — scoffed at the suggestion that pressure caused the injury.

He said Burge may not have presented a perfect case, but that didn’t mean he gave Dovala an ineffective defense.

“His representation was of a professional standard and competent,” Krirvel said.

Burge — who testified during a deposition earlier this month and wasn’t in the courtroom Friday — said that he did the best he could with the evidence he had.

“When you lose, you’re always ineffective, but I did not analyze the case incorrectly,” Burge said Friday.

He said he had consulted with medical experts, including a neurologist, and presented a possible theory of the injuries that he felt could explain how Riley died, even though there was nothing in medical literature that backed it up.

“There is no medical authority for the defense presented,” Burge said.

DeVan said Burge appeared to have relied on his experience to poke holes in the prosecution’s case and failed to do so. Burge needed an expert to back up his theory or to argue a different theory, he said.

“Without that, they were left flat-footed in the courtroom,” DeVan said.

Also testifying Friday was Dovala’s mother, Margaret “Petey” Heimann, who said that she had raised the possibility that Riley was injured by another child with Burge, but he didn’t use the information effectively during the trial.